McManus v. Burrows

• Decision Date: 10 December 1912
• Citation: 246 Mo. 438,152 S.W. 3
• Parties: McMANUS v. BURROWS et al.
• Court: Missouri Supreme Court

152 S.W. 3

246 Mo. 438

McMANUS v. BURROWS et al.

Supreme Court of Missouri, Division No. 2.

December 10, 1912.

1. PARTITION (§ 114) — JUDGMENT — EXECUTION.

Under Rev. St. 1909, § 2172, providing that the party in whose favor any judgment is rendered may have execution in conformity therewith, and section 2279, authorizing the execution on judgments in partition for the costs against each party, and sections 2609 and 2578, authorizing allowances in favor of attorneys and commissioners in partition and declaring that the same shall be taxed and collected as other costs, costs and allowances in partition may be collected by execution.

2. EXECUTION (§ 84) — CONFORMITY TO JUDGMENT.

An execution to be valid must conform to the judgment on which it is based.

3. PARTITION (§ 114) — JUDGMENT — EXECUTION.

Where a judgment in partition taxed costs and allowances against each allottee, and thereafter a party paid the sums adjudged against her, and another party paid his part of the attorney's fees as adjudged against him and another party paid nothing, an execution against the latter two for the amount due from them, respectively, conformed to the judgment, though it made no reference to the party who had paid the entire sum adjudged against her.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Thomas Ward McManus against Camilla S. W. Burrows and others. From an order overruling a motion to recall and quash an execution, plaintiff appeals. Affirmed.

T. J. Rowe, Thos. J. Rowe, Jr., and Henry Rowe, all of St. Louis, for appellant. Sim T. Price and R. M. Nichols, both of St. Louis, for respondents.

BLAIR, C.

This is an appeal from an order of the circuit court of the city of St. Louis overruling a motion to recall and quash an execution issued on a judgment partitioning certain property in kind and awarding costs and attorneys' fees. On the coming in of the report of the commissioners the plaintiff, the present appellant, moved for confirmation of the report, and the court took up at the same time with plaintiff's motion the petition or motion for the allowance of attorneys' and commissioners' fees and thereupon rendered judgment confirming the report of the commissioners, making certain allowances to the commissioners and to the attorneys in the case and allowing certain other items of expense and costs. The whole amount of all these allowances was by the judgment taxed as costs and adjudged against the several parties in proportion to their interests in the lands partitioned, i. e., one-half against appellant, one-third against Park, trustee, and one-sixth against Camilla S. W. Burrows. At the next term of court the attorneys and commissioners moved for execution on this judgment, the motion reciting the several allowances made by the court, and further stating that Camilla S. W. Burrows had paid all sums adjudged against her that appellant had paid one-half of the allowance for attorneys' fees and Park had paid nothing, and prayed execution against appellant and Park for the sums adjudged against them and yet unpaid. The court, over appellant's exception, sustained the motion and ordered that execution issue. The execution issued pursuant to this order clearly identified the judgment upon which it rested, recited the several allowances made, stated the interests of the several partitioners in the property partitioned and the proportions of all the allowances and costs adjudged against the respective partitioners, set forth the payment by Camilla S. W. Burrows of the whole amount adjudged against her and the payment by appellant of that part of the allowance for attorneys' fees adjudged against him, and commanded that there be made from the property of appellant one-half of each allowance except that for attorneys' fees, and that there be made from the property in Park's hands as trustee one-third of each allowance made in the judgment. In view of the questions presented by appellant's counsel in this court, this is a sufficient statement of the substance of the execution issued. Appellant's motion to recall and quash the execution was overruled, and he appealed.

Other facts pertinent to the questions presented will be stated in the course of the opinion.

A reversal is sought on the grounds that: (1) The judgment does not authorize the issuance of execution; (2) the attorneys and commissioners had no right to have execution issued; and (3) the execution does not conform to the judgment.

I. The judgment in partition was not appealed from and became final with the lapse of the term. Appellant took and is in possession of the parcels of realty set off to him in the commissioners' report as confirmed by the court. The statute (section 2279, R. S. 1909) authorized judgment for his proportionate share of the costs against each party to the partition proceedings and the issuance of execution on such judgment, the levy of such execution on the property of the respective partitioners, and the sale, under that execution, of enough of the property of each to pay the amount adjudged against him, and no more.

1. Under the general statute (section 2172, R. S. 1909), "the party in whose favor any judgment, order or decree is rendered, may have execution in conformity therewith," and section 2279, supra, specifically warrants the issuance of execution on judgments of this kind in suits in partition. Even at common law it was not necessary that the judgment formally award execution. 1 Freeman on Executions, § 16.

2. It is insisted, however, that the sections of the statute (sections 2609 and 2578, R. S. 1909) which authorize allowances in favor of attorneys and commissioners in suits in partition provide that these shall be taxed and collected as costs, and, it is argued, that collection thereof must be made by fee bill, not by execution. The argument is principally based on the idea that the judgment is merely for costs, in the ordinary sense, and that those in whose favor allowances are made are not "parties" entitled to execution. There was a time when the statute (Gen. Stat. 1865, p. 689, § 22)...